Massachusetts Reviewing Board Finds Second Employer May be Responsible for Employee’s Injury

Recently, the Massachusetts Department of Industrial Accidents, Review Board, held that a judge had erred by substituting his own findings for those of the examining physician and that the employee was entitled to the reversal of his decision. In this case, the Board assessed whether in this successive insurer situation, the second employer could potentially be responsible for compensating the employee for work-related injuries. The successive insurer in this case was the most recent employer, which argued that they should not be required to compensate the employee for her disability.

Here, the Department of Industrial Accidents found the judge had erred by failing to find the second employer responsible for compensating the employee for an injury to her right shoulder due to a work-related accident suffered at her former place of employment. The successive insurer rule holds employers accountable for compensating employees who endure the worsening of an injury originally caused while working for an earlier employer. Here, the employee worked as a certified nursing assistant. In October 2007, she worked for the first employer and was injured when she fell down a flight of stairs. Specifically, she injured her left shoulder and right knee. Her employer paid her weekly total incapacity benefits, according to § 34. Her benefits continued through March 2008.

Later, the employee secured another job, and in January 2011, she underwent left shoulder surgery. In March, she filed a claim for payment of medical benefits and partial incapacity benefits, as well as total incapacity benefits. Her claim was denied, and she appealed and underwent a medical examination. Eventually, the case settled, and liability was established for her work-related injury of October 2007, concerning her left shoulder and the strain/sprain in her right shoulder.

In September 2013, the employee brought claims against both employers for medical benefits and treatment. Again, the claims were denied, and the employee appealed. She was examined by an impartial medical examiner, who issued a report.

The judge had adopted only certain statements set forth by this medical examiner and ordered the initial employer to pay for medical treatment for both shoulder conditions. The judge’s conclusion was that the employee’s industrial injury in October 2007 caused her medical conditions, including the symptoms of her right shoulder.

In their analysis, the Board stated the rule that when there are several successive insurance companies, the one that is charged with the whole compensation is the one that covers the risk at the time of the most recent injury related to the disability. The Board noted that here, the judge had adopted the doctor’s opinions. Examining these opinions and the judge’s decision, the Board stated that the medical evidence supported a worsening of the employee’s condition due to her work for the second employer.

The Board stated that it is a medical question as to whether an activity worsens a condition, but in this case, the judge drew his own inference that the employee’s condition was simply a natural progression of her original injury at the first employer. According to the Board, in doing so, the judge mischaracterized the medical opinion and substituted his own opinions for medical opinions. In fact, the Board stated that the medical evidence supported a finding that the employee’s medical condition worsened as a result of working for the second employer.

In a successive insurer case, when an employee suffers a worsening, even to the “slightest extent,” it is sufficient for a finding of liability. Here, the Board stated the judge cannot adopt segments of the physician’s opinion and substitute his own opinion for the doctor because he disagrees with the legal consequence of that opinion. According to the Board, the medical opinion made clear the employee suffered an injury to her right shoulder as a result of her work for the second employer.

The Board reversed the part of the decision that held the first insurer responsible for the employee’s medical treatment for her right shoulder because there had not been an injury at the second employer. The Board recommitted the case for further findings of fact and legal rulings.

The Massachusetts attorneys at Pulgini & Norton offer legal representation to people injured at work and pursuing workers’ compensation benefits. Massachusetts law provides medical expenses and lost wages for those workers injured in the course and scope of employment. Call our office at (781) 843-2200 or contact us online to learn more about filing a workers’ compensation claim. Our dedicated attorneys provide a no-obligation, free consultation.